Citation Nr: 0210098
Decision Date: 08/19/02 Archive Date: 08/29/02
DOCKET NO. 96-30 139 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased evaluation for a right (major)
wrist disability, evaluated as 10 percent disabling, for a
period prior to September 30, 1999.
(The issue of entitlement to an increased evaluation for a
right (major) wrist disability, evaluated as 30 percent
disabling, from January 1, 2000, will be the subject of a
later decision.)
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Jonathan E. Taylor, Counsel
INTRODUCTION
The appellant served on active duty from March 1984 to March
1992.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an August 1995 rating decision of the
North Little Rock, Arkansas, Department of Veterans Affairs
(VA) Regional Office (RO).
In January 1998, the appellant was awarded a temporary total
rating for his right wrist disability, pursuant to 38 C.F.R.
§ 4.30, effective from January 9, 1998, to March 1, 1998. In
a November 1999 rating decision by the Waco, Texas, VARO, the
appellant was awarded a temporary total rating for his right
wrist disability, pursuant to 38 C.F.R. § 4.30, effective
from September 30, 1999, to January 1, 2001.
In a December 2001 rating decision, the appellant was awarded
an increased, 30 percent, evaluation for his service-
connected right wrist disability, effective from January 1,
2001. The Board is undertaking additional development on the
issue of entitlement to an increased evaluation for a right
(major) wrist disability, evaluated as 30 percent disabling,
from January 1, 2000, pursuant to authority granted by 67
Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at
38 C.F.R. § 19.9(a)(2)). When the additional development is
completed, the Board will provide notice of the development
as required by Rule of Practice 903. See 67 Fed. Reg. 3,
099, 3,105 (Jan. 23, 2002) (to be codified at 38 C.F.R.
§ 20.903). After providing the notice and reviewing any
response to the notice from the appellant or his
representative, the Board will prepare a separate decision
addressing this issue.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the agency of original jurisdiction.
2. Prior to September 30, 1999, the appellant's right wrist
disability was manifested by pronation limited to 30 degrees.
CONCLUSION OF LAW
The criteria for a 30 percent disability evaluation, but no
higher, for a right wrist disability, prior to September 30,
1999, have been met. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59,
4.71a, Diagnostic Codes 5213, 5214, 5215 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service medical records show that in May 1987 the appellant
reported a history of sustaining a crush-type injury to his
right wrist in March 1987. In January 1989 the appellant
underwent an open reduction of the distal radicular joint
because of persistent instability of the distal radioulnar
joint. The joint was stabilized with a tendon slip of the
extensor carpi ulnaris. In April 1989 the appellant
underwent a diagnostic arthroscopy of his right wrist.
Dynamic rotary subluxation of the right wrist was diagnosed,
and the appellant was scheduled for scapho-capitate
arthrodesis. In June 1989 the appellant underwent
arthrodesis of the scapho-trapezium-trapezoid joint of the
right wrist. Wires were placed from the scaphoid into the
capitate and into the lunate.
At an October 1994 VA hand, thumb, and fingers examination,
the appellant reported that he had fractured his right wrist
in service in 1987. He had arthroscopic surgery on the wrist
in 1988, surgical fusion in 1989, and surgical removal of
some hardware in 1989. He took Tylenol for pain but did not
wear a splint or a brace. He complained of a constant
gripping, binding pain in the distal right wrist. There was
stiffness of the wrist, and his muscles were weak. The right
wrist was tender. There was no range of motion of the wrist
joint. There was no sensory deficit. There was no effusion,
redness, or heat. The diagnoses were status post fracture of
the right wrist, status post fusion, degenerative joint
disease of the wrist. X-ray examination showed apparent
fusion of the lateral row of carpal bones.
Reserve duty medical records show that in December 1994 the
appellant was noted to have a bony nodule on his right wrist
secondary to fusion. The examiner added that the appellant
had an old injury of the right wrist with fused wrist and
that he had a permanent profile for no pushups.
At a July 1995 VA examination, the appellant complained that
when he tried to dorsiflex his right wrist, his fingers
spread apart. He also complained of wrist pain that was
aggravated by lifting or gripping. The appellant was able to
dorsiflex his right wrist to 20 degrees and palmar flexed the
wrist to 55 degrees. He had full supination. Pronation was
limited to the last 10 degrees. He could make a tight fist
and fully extend his fingers. He had good abduction and
adduction, lacking the last two to three degrees of each. X-
ray examination showed that the right wrist was slightly
short, probably secondary to a fracture. The radius was
slightly depressed and shortened. There was fusion of the
greater multangular, lesser multangular, and navicular into
one bony unit. The examiner stated that the appellant did
not have right wrist fusion and that the radiocarpal joint
was not fused whatsoever. There was motion in the wrist, but
it was limited. There was a fusion of the navicular greater
and lesser cuneiform segments, which comprise the radial side
of the wrist carpals.
At a July 1997 VA wrist examination, it was noted that the
appellant was right-handed. The examiner reviewed the
appellant's claims folder and described the appellant's
history. The appellant was able to palmar flex his right
wrist to 25 degrees and dorsiflex it to 20 degrees. Radial
and ulnar deviation were to five degrees each. Pronation was
to 30 degrees and supination was to eight degrees. The
appellant had a reduced grip and weak hook-and-pitch action.
He had diminished appreciation to pin prick on the palmar
aspect opposite the middle finger, ring finger, and fifth
finger. This was close to the ulnar nerve. He had calluses
in the palm opposite the ring and middle metacarpophalangeal
articulation. X-ray examination of the wrist revealed a
solid bony ankylosis or fusion produced surgically between
the scaphoid and greater multangular. The examiner was
unable to appreciate a fusion between the scaphoid and
lunate, but there was a fusion between the capitate and the
greater multangular. There was distortion between the
capitate and base of the middle metacarpal. No changes were
noted between the carpus and the distal radius. The
diagnoses were surgical fusion, scaphoid-capitate-greater
multangular; fibrous ankylosis of the right radiocarpal joint
secondary to surgery and injury; and sensory impairment,
palmar aspect of the right hand, etiology unclear. The
examiner stated that surgery produced ankylosis within the
carpal bones of the right hand. The right wrist for
articulation between the radius and carpus was not surgically
approached, but there was some loss of range of motion of the
right wrist joint secondary to the series of injuries and
surgeries that the appellant had had. The position of the
wrist, hand, and forearm were mechanically favorable, but due
to the fibrous tissue constraints when the range of motion of
the joints so ankylosed were exceeded, it produced pain.
Consequently, this produced functional loss due to pain.
At a July 1997 VA neurological examination, the examiner
noted that strength and muscle tone of all major muscle
groups in the upper and lower extremities were within the
normal limits. Touch and proprioception were intact. The
appellant claimed to have decreased pinprick sensation in a
patchy distribution in the upper and lower extremities, which
was somewhat inconsistent and nonphysiological. On repeated
testing, pinprick sensation was intact in the distribution of
all major dermatomes and peripheral nerves in the upper and
lower extremities.
VA medical records show treatment of the appellant for right
wrist pain from June 1997 to January 1998. In June 1997 the
appellant was noted to have limited range of motion of the
wrist. Dorsiflexion and palmar flexion were both ten
degrees. The appellant wrist was placed in a splint. In
September 1997 the diagnoses included early scaphoradial
degenerative joint disease and triangular fibrocartilage
complex injury. In October 1997 it was noted that the
appellant's right ulna was unstable with pronation. Distal
or radial ulnar joint reconstruction was planned. In January
1998 the appellant underwent surgical reconstruction of his
right wrist.
In December 1997 the appellant underwent a VA vocational
rehabilitation evaluation. His service-connected
disabilities were determined to represent a serious
employment handicap. The appellant was scheduled for further
evaluation and occupational therapy, but he relocated to
another region of the country prior to his next scheduled
appointment.
At a May 1999 VA joints examination, the appellant complained
of right wrist pain occurring every day and lasting most of
the day. The appellant had difficulty sleeping due to pain.
There was pain across the dorsal aspect of his wrist and over
the medial side of the radioulnar joint. There was no
swelling, erythema, or visible atrophy of the hand muscles.
There were three well-healed incisions, which were barely
visible. The ulnar hat was visibly and palpably enlarged.
The appellant could make a full fist with all fingers
touching the palm. Muscle strength was 4.5/5. There was
tenderness over the carpal canal and the ulnar hat. The
joint could not be made to subluxate. The appellant was able
to palmar flex his right wrist to 30 degrees and dorsiflex it
to 30 degrees. Radial deviation was to two or three degrees,
and ulnar deviation was to 15 degrees. The examiner noted
that the appellant could not be engaged in jobs that required
strength and precision of his right hand and would benefit
from vocational rehabilitation.
On September 30, 1999, the appellant underwent fusion of the
right wrist with distal ulnar resection, with autologous
iliac bone graft from the left iliac crest.
VA has a duty to assist veterans in the development of facts
pertinent to their claims. There has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et
seq. (West Supp. 2001); see also 66 Fed. Reg. 45620 (August
29, 2001) (to be codified as amended at 38 C.F.R. § 3.102,
3.156(a), 3.159, 3.326(a)) (VA regulations implementing the
VCAA). This law redefines the obligations of VA with respect
to the duty to assist and includes an enhanced duty to notify
a claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.
First, VA has a duty to notify the veteran and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103 (West Supp. 2001); 66 Fed. Reg.
45620, 45630 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(b)). Information means non-evidentiary facts, such
as the veteran's address and Social Security number or the
name and address of a medical care provider who may have
evidence pertinent to the claim. 66 Fed. Reg. 45620, 45630
(August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(a)(5)). Second, VA has a duty to assist the veteran
in obtaining evidence necessary to substantiate the claim.
38 U.S.C.A. § 5103A (West Supp. 2001); 66 Fed. Reg. 45620,
45630-31 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(c)).
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. VCAA,
38 U.S.C.A. § 5100 et seq. (West Supp. 2001); see also
Karnas v. Derwinski, 1 Vet. App. 308 (1991). As discussed
below, the RO fulfilled its duties to inform and assist the
appellant on this claim. Accordingly, the Board can issue a
final decision because all notice and duty to assist
requirements have been fully satisfied, and the appellant is
not prejudiced by appellate review. Further, the RO's
efforts have complied with the instructions contained in the
December 1998 Remand from the Board. See Stegall v. West, 11
Vet. App. 268 (1998).
Sufficient information concerning the appellant was of record
at the time that he filed his claim. In the August 1995
rating decision, the RO informed the appellant of the type of
evidence needed to substantiate his claim, specifically the
evidence required for higher disability ratings. VA has no
outstanding duty to inform the appellant that any additional
information or evidence is needed. The Board concludes that
the discussions in the rating decision informed the appellant
of the information and evidence needed to substantiate this
claim and complied with VA's notification requirements.
As for VA's duty to assist a veteran, the RO has obtained
treatment records that the appellant has identified regarding
his right wrist disability. VA treatment records have been
obtained. There is no indication that relevant (i.e.,
pertaining to treatment for the claimed disability) records
exist that have not been obtained. As for VA's duty to
obtain any medical examinations, that was fulfilled by
providing VA examinations to the appellant in October 1994,
July 1995, July 1997, and May 1999.
The Board finds that VA has done everything reasonably
possible to assist the appellant. A remand or further
development of this claim would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which
would only result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran are to
be avoided). VA has satisfied its duties to inform and
assist the appellant in this case. Further development and
further expending of VA's resources is not warranted. Any
"error" to the appellant resulting from this Board decision
does not affect the merits of his claims or his substantive
rights, for the reasons discussed above, and is therefore
harmless. See 38 C.F.R. § 20.1102 (2001). Having determined
that the duties to inform and assist the appellant have been
fulfilled, the Board must assess the credibility, and
therefore the probative value of proffered evidence of record
in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995);
see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden
v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v.
Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet.
App. 155, 161 (1993).
Disability ratings are intended to compensate reductions in
earning capacity as a result of the specific disorder. The
ratings are intended, as far as practicably can be
determined, to compensate the average impairment of earning
capacity resulting from such disorder in civilian
occupations. 38 U.S.C.A. § 1155 (West 1991). Consideration
of the whole recorded history is necessary so that a rating
may accurately reflect the elements of disability present.
38 C.F.R. §§ 4.1, 4.2 (2001); Peyton v. Derwinski, 1 Vet.
App. 282 (1991). Where entitlement to compensation has
already been established, and an increase in the disability
rating is at issue, the present level of disability is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2
(2001). It is also necessary to evaluate the disability from
the point of view of the veteran working or seeking work,
38 C.F.R. § 4.2 (2001), and to resolve any reasonable doubt
regarding the extent of the disability in the veteran's
favor. 38 C.F.R. § 4.3 (2001).
An evaluation of the level of disability includes
consideration of the functional impairment of the appellant's
ability to engage in ordinary activities, including
employment. 38 C.F.R. § 4.10 (2001). If there is a question
as to which evaluation to apply to the veteran's disability,
the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2001).
Regarding musculoskeletal disabilities, such as the
appellant's right wrist disability, functional loss
contemplates the inability of the body to perform the normal
working movements of the body with normal excursion,
strength, speed, coordination and endurance, and must be
manifested by adequate evidence of disabling pathology,
especially when it is due to pain. 38 C.F.R. § 4.40 (2001).
A part that becomes painful on use must be regarded as
seriously disabled. Id.; see also DeLuca v. Brown, 8 Vet.
App. 202 (1995). Both limitation of motion and pain are
necessarily recorded as constituents of a disability. 38
C.F.R. §§ 4.40, 4.45, 4.59 (2001); see also DeLuca, 8 Vet.
App. 202.
A disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
38 C.F.R. § 4.40 (2001); see DeLuca v. Brown, 8 Vet.
App. 202, 205-06 (1995).
As regards the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to less or more
movement than normal (due to a variety of reasons, to include
ankylosis), weakened movement, excess fatigability,
incoordination, impaired ability to execute skilled movements
smoothly, pain on movement, swelling, or deformity or atrophy
of disuse. 38 C.F.R. § 4.45 (2001).
Prior to September 30, 1999, the appellant's service-
connected right wrist disability was evaluated as 10 percent
disabling under Diagnostic Code 5215 for limitation of motion
of the major wrist. A 10 percent rating is assigned for
either dorsiflexion less than 15 degrees or palmar flexion
limited in line with the forearm. No higher rating is
available under this diagnostic code. 38 C.F.R. § 4.71a,
Diagnostic Code 5215 (2001).
The Board has considered other diagnostic codes that provide
for higher disability ratings. A 30 percent disability
rating is available under Diagnostic Code 5214 for favorable
ankylosis, in 20 to 30 degrees of dorsiflexion, of the major
wrist. 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2001).
Diagnostic Code 5213 also provides for higher disability
ratings for limitation of pronation of the major arm. A 20
percent disability rating is available for motion lost beyond
the last quarter of the arc, with the hand not approaching
full pronation. A 30 percent disability rating is available
for motion lost beyond the middle of the arc. 38 C.F.R.
§ 4.71a, Diagnostic Code 5213 (2001). Full pronation of the
forearm is the arc from zero to 80 degrees with the forearm
in midposition between pronation and supination. 38 C.F.R.
§ 4.71, Plate I (2001). Loss of motion beyond the last
quarter of the arc would be pronation to 60 degrees. Loss of
motion beyond the middle of the arc would be pronation to 40
degrees.
After the appellant filed his current claim, VA examinations
of the appellant were conducted on four occasions prior to
September 1999-in October 1994, July 1995, July 1997, and
May 1999. The only examination showing dorsiflexion of
limited to 15 degrees or palmar flexion in line with the
forearm, as required for a 10 percent disability evaluation
under Diagnostic Code 5215 is the October 1994 examination.
That examination report raises the question of whether the
examiner attempted to conduct range of motion testing of the
appellant's right wrist because it is the only record in the
available evidence indicating that the appellant was unable
to flex or extend his wrist. Although the appellant
underwent surgical fusion of his right wrist in June 1989,
motion was shown in the appellant's right wrist on VA
examination in May 1992. Further, in the appellant's own
statement in September 1994, in which he asserted that his
wrist did not bend at all, he also stated that his hand hurt
when he bent it wrong. Thus, the report is inadequate. See
38 C.F.R. § 4.70 (2001).
Similarly, although the May 1999 examination report is useful
in determining dorsiflexion and palmar flexion of the
appellant's right wrist, the examiner described pronation and
supination by noting that rotation was from zero to 90
degrees. Given that the normal range of pronation is from
zero to 80 degrees and the normal range of supination is from
zero to 85 degrees on the opposite side of the midpoint of
zero degrees, for a total of 165 degrees, the Board is
confounded by the examiner's comment. See 38 C.F.R. § 4.71,
Plate I (2001). Therefore, that report is also inadequate.
The reports of examinations in July 1995 and July 1997 are
both adequate, but based on a review of the reports, the
Board concludes that the July 1997 examination was more
thorough and, therefore, accords it greater weight. In doing
so, the Board is also resolving any reasonable doubt
regarding the extent of the appellant's right wrist
disability in his favor because this report paints the most
severe disability picture. See 38 C.F.R. § 4.3 (2001).
Based on the July 1997 examination report, which showed
pronation of the forearm limited to 30 degrees, the Board
finds, prior to September 30, 1999, that the appellant is
entitled to a 30 percent disability rating under Diagnostic
Code 5213 for limitation of pronation of the major forearm
with loss of motion beyond the middle of the arc. Higher
disability evaluations of 40 percent are available under
Diagnostic Code 5213 for loss of supination and pronation
with the major hand fixed in supination or hyperpronation or
under Diagnostic Code 5214 for ankylosis of the major wrist
in any position other than favorable. Loss of supination and
pronation has not been shown. The only evidence showing
ankylosis of the right wrist is the report of the October
1994 VA examination. This report is outweighed by the
evidence both temporally before the examination, but
subsequent to the appellant's 1989 surgery involving fusion
of some of the bones in his wrist, and after the examination,
showing dorsiflexion and palmar flexion of the wrist.
Accordingly, the preponderance of the evidence is against the
assignment of a disability rating greater than 30 percent
prior to September 30, 1999.
In exceptional cases where a schedular evaluation is found to
be inadequate, the RO may refer a claim to the Chief Benefits
Director or the Director, Compensation and Pension Service
for consideration of "an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities." 38 C.F.R. § 3.321(b)(1) (2001). "The
governing norm in these exceptional cases is: A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards." 38 C.F.R. § 3.321(b)(1) (2001).
The Board notes first that the schedular evaluations for the
disabilities in this case are not inadequate. Higher ratings
are provided for impairment due to wrist and forearm
disabilities; however, the medical evidence reflects that
those manifestations are not present in this case. Second,
the Board finds no evidence of an exceptional disability
picture in this case. The appellant has not required any
periods of hospitalization for his service-connected right
wrist disability.
It is undisputed that the appellant's service-connected
disability has an adverse effect on his employment, but it
bears emphasizing that the schedular rating criteria are
designed to take such factors into account. The schedule is
intended to compensate for average impairments in earning
capacity resulting from service-connected disability in civil
occupations. 38 U.S.C.A. § 1155 (West 1991). "Generally,
the degrees of disability specified [in the rating schedule]
are considered adequate to compensate for considerable loss
of working time from exacerbations or illnesses proportionate
to the severity of the several grades of disability." 38
C.F.R. § 4.1 (2001). Therefore, given the lack of evidence
showing unusual disability not contemplated by the rating
schedule, the Board concludes that a remand to the RO for
referral of this issue to the VA Central Office for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) is not warranted.
ORDER
A 30 percent rating, but no higher, for the appellant's right
wrist disability prior to September 30, 1999, is granted,
subject to the regulations governing the payment of monetary
awards.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the claim
on or after November 18, 1988" is no longer a condition for
an attorney-at-law or a VA accredited agent to charge you a
fee for representing you.